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Book Review
| John Ruston Pagan. Anne Orthwood's Bastard: Sex and Law in Early Virginia, New York: Oxford University Press, 2003. Cloth $55.00 (ISBN 0-19-514478-3); paper $19.95 (ISBN 0-19-514479-1).
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| In Anne Orthwood's Bastard, John Ruston Pagan rivets our attention on the legalities surrounding a single instance of out-of-wedlock pregnancy in seventeenth-century Virginia. On the face of it, those legalities were typical: prosecutions for fornication, premarital, or out-of-wedlock pregnancy were routine matters in early modern courts in Virginia, British North America, and England. In Pagan's hands, however, this seemingly routine case gains significance for early American legal history. The event, its principal players, and the legal suits it generated, he argues, reveal that by the last half of the seventeenth century, Virginians had shaped a distinctive legal culture on the Eastern Shore. |
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In order to best illustrate the machinery of local justice on the Eastern Shore, each chapter focuses on a key figure in the Orthwood case. The study begins, appropriately, with Anne Orthwood, whose existence can be described as tenuous, at best. Born in 1639 in Worcester, England, Anne's was the sole entry of fifty-eight births registered in her Anglican parish designated with the Latin notha or bastard. Her mother decamped to Bristol to avoid prosecution; three years later, she bore another out-of-wedlock daughter. In 1662, Anne indentured her labor and sailed for Virginia at the age of twenty-three. Her prospects proved no better than her mother's. Two years later she was pregnant, bearing twins in July 1664, naming John Kendall as their father, and dying, along with one son, in childbed. Subsequent chapters are devoted to each individual involved in the case—master, justice, clerk, midwife, jury foreman, father, and, fittingly, Anne's surviving son, Jasper. This approach effectively captures the spectrum of local legal culture and reveals the often disturbing extent to which empowered players on the Eastern Shore were able to mold the law to their own self-interests. |
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Pagan is most concerned with this plasticity of legalities and the express legal modifications made by empowered Shoremen. Indenture contracts, for instance, became extremely malleable to local interests. Anne Orthwood's indenture was sold three times in two years, each time without her consent as would have been necessary in England. Justices simultaneously stripped servants of their rights and allowed greater protection to the purchasers of their contracts: caveat venditor, rather than the English rule of caveat emptor, prevailed on the Shore in order to proscribe sellers from passing off unhealthy or, in the Orthwood case, pregnant, servants to unsuspecting masters. This precedent would continue to govern the legal transfer of slaves in the next century. |
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Shoreman also modified paternity proceedings. Summary justice prevailed in such cases, and magistrates almost automatically accepted women's assignations of paternity. Justices did so, Pagan argues, because the financial burdens to fathers were comparatively light. In England, fathers had to pay premiums to indenture their offspring; in Virginia indentures were easily obtained with minimal payments and freed fathers from the future obligations of child support. In the Orthwood case, for instance, justices summarily accepted Anne's oath that John Kendall had fathered her children. Yet, after Anne's death, Kendall filed a petition that denied paternity. The justices were persuaded and ruled favorably, but, astonishingly, did not alter their earlier verdict: Kendall remained legally responsible for the support of the infant Jasper, whom he quickly indentured, but simultaneously was deemed to be morally innocent. In paternity proceedings, the presumed truth of a woman's word was, largely, irrebuttable, but a man with powerful allies, like John Kendall, or one who fathered children with a woman of color could maneuver to escape full responsibility. Moreover, these modifications and maneuvers, as Pagan might have noted more strongly, in no way ameliorated the penalties endured by mothers who were saddled with penance, extra service, fines, or corporal punishment. |
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As a legal history, Pagan's book has innovative features. His discussion of growing differences in English and Virginia legal culture is well supported by documenting changing evidentiary standards and procedural considerations, and he carefully identifies fundamental legal precedents in Eastern Shore justice. Yet his focus on legalities allows for an uneven discussion of how the law shaped relations of power in this nascent society. At times, Pagan explores such contingencies effectively. John Kendall's ex parte brief was engineered by a powerful uncle who emigrated to Virginia as a servant but, thanks in part to three marriages to three wealthy widows, rose to become justice, churchwarden, and master. He intended to execute a similarly enriching marriage for his nephew; doing so meant successfully putting both physical and moral distance between John Kendall and Anne Orthwood. (Hence, the ex parte brief.) At other times, however, Pagan's analysis fails to completely consider the inequalities between men and women. Throughout the book he assigns a romance between John Kendall and Anne Orthwood with little evidence to support it. Given that the father of her children was the nephew of her master, can we meaningfully separate the consensual from the coercive aspects of their sexual encounters? |
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Finally, if the seventeenth-century Eastern Shore of Anne Orthwood's Bastard often resembles a fiefdom where local grandees played out their interests in no small part through their grip on local legal culture, Pagan also very successfully demonstrates that this was not always strictly the rule. The law could work against the powerful. After all was said and done, the justices slapped John Kendall with a fornication suit, although they subsequently dismissed it. The relatively powerless also had rights. Jasper Orthwood successfully sued for his freedom at the age of twenty-one, rather than waiting to reach the customary age of twenty-four, and thereby set a legal precedent for similar emancipations in the future. In these ways, Pagan's meticulous research and compelling narrative immerse readers in the legal world of the Eastern Shore and give them a sobering lesson in the harsh realities of justice and injustice in early America. |
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| Terri L. Snyder
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| California State University, Fullerton |
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